Reynard v. City of Caldwell

• Decision Date: 01 March 1935
• Docket Number: 6119
• Citation: 55 Idaho 342,42 P.2d 292
• Parties: E. C. REYNARD, Appellant, v. THE CITY OF CALDWELL, IDAHO, a Municipal Corporation, and EMERY L. VASSAR, as Mayor of Said City of Caldwell, Idaho, and EMERY BALES, EDGAR L. OAKES, W. S. BOYNTON, G. W. MONTGOMERY, G. N. FENRICH and W. R. HOLLINGSWORTH, as Councilmen of Said City of Caldwell, Idaho, and HARRY E. PARMENTER, as City Treasurer of Said City of Caldwell, Idaho, Respondents
• Court: Idaho Supreme Court

42 P.2d 292

55 Idaho 342

E. C. REYNARD, Appellant, v. THE CITY OF CALDWELL, IDAHO, a Municipal Corporation, and EMERY L. VASSAR, as Mayor of Said City of Caldwell, Idaho, and EMERY BALES, EDGAR L. OAKES, W. S. BOYNTON, G. W. MONTGOMERY, G. N. FENRICH and W. R. HOLLINGSWORTH, as Councilmen of Said City of Caldwell, Idaho, and HARRY E. PARMENTER, as City Treasurer of Said City of Caldwell, Idaho, Respondents

No. 6119

Supreme Court of Idaho

March 1, 1935

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. A. O. Sutton, District Judge.

Action to compel reassessment for special improvements. Judgment for defendants. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

Delana & Delana and M. H. Eustace, for Appellant.

Where street railways run longitudinally in the center of the street they are not assessable for special improvements under statutes authorizing assessments against property fronting abutting or contiguous upon such improvement. (Hamilton on Special Assessments, sec. 304; Page & Jones on Special Assessments, sec. 601, p. 1001; South Park Commrs. v Chicago, B. & Q. R. Co., 107 Ill. 105; Indianapolis & V. Ry. Co. v. Capitol Pav. & Const. Co., 24 Ind.App 114, 54 N.E. 1076; City of Seattle v. Seattle Electric Co., 48 Wash. 599, 94 P. 194, 15 L. R. A., N. S., 486; City of Maysville v. Maysville St. R. & Transfer Co., 128 Ky. 673, 108 S.W. 960.)

Cleve Groome and S. Ben Dunlap, for Respondents.

The rights of way of the street-car companies involved in this action were assessable as contiguous, abutting or adjoining and approximate property, under the Idaho Improvement district statute. (44 C. J., p. 533, sec. 2895; Edwards Hotel etc. R. Co. v. City of Jackson, 96 Miss. 547, 51 So. 802; 25 R. C. L., sec. 36, p. 120; Kuehner v. City of Freeport, 143 Ill. 92, 32 N.E. 372, 17 L. R. A. 774.)

BUDGE, J. Holden, J., and Koelsch, D. J., concur. Givens, C. J., and Morgan, J., dissent.

OPINION

BUDGE, J.

Appellant, for himself and others similarly situated who might join in the proceedings, as purchaser and owner of bonds of Local Improvement District numbers 2 and 4 of the City of Caldwell, seeks to compel a reassessment by the City of Caldwell and its officials against the privately owned property in the districts to cover an insufficiency, namely: the balances unpaid, together with interest, originally assessed against the Boise Valley Traction Company, the Caldwell Traction Company, and certain real property of the City of Caldwell, basing his claim to right for reassessment on the ground that the original assessments against the traction companies and the city properties were illegal and void.

The improvement districts were organized for the purpose of paving certain streets within the city. On or about November 1, 1920, assessment-rolls for districts numbered 2 and 4 were approved and confirmed. In the assessments for benefits a levy was made against the Caldwell Traction Company in the sum of $ 604.71, and the Boise Valley Traction Company in the sum of $ 38,875.41, the said traction companies having franchises and street-car lines lying in the center of certain streets within the improvement districts, and having received their franchises with the stipulation that they would be required to pay for any paving constructed on the streets occupied by them to the extent of the space between the rails of the tracks and two feet outside of said rails, and that the city could pave such portion of such streets and charge the expense thereof to the grantees of the franchises. Likewise the city assessed for benefits the total sum of $ 6,389.72, against property owned and occupied by the city as a City Library, City Park and City Garage.

The pleadings set forth that the Boise Valley Traction Company paid only $ 13,606.39, principal, and $ 8,299.91, interest, that the Caldwell Traction Company has paid nothing and that the assessments against the city properties were not paid and that said assessments against the city properties have been declared illegal and void by the district court, which decision was affirmed by this court. (Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527, 90 A. L. R. 1124.)

Respondents filed a general and special demurrer to, and motions to strike and quash, the alternative writ of mandate, and the trial court made and entered an order sustaining the general demurrer and the motion to quash the writ, and dismissing the action, from which order this appeal is prosecuted, appellant assigning as error the court's action in the three above-mentioned particulars.

We will discuss and dispose of what appear to be the important and controlling questions presented by the record.

We are agreed with appellant's contention that the special assessments levied against the property owned by the City of Caldwell were void and unenforceable and so determined to be in the decision in Reynard v. City of Caldwell, supra.

While the city council was without statutory authority to levy by ordinance special assessments against property owned by the city within the improvement districts for special improvements, thereby creating a lien against said property, it was empowered to expend from the general fund for such purposes such sums as, in its judgment, might be fair and equitable in consideration of benefits accruing to the general public by reason of such improvements, under the express provisions of I. C. A., section 49-2707, and this court so held in Reynard v. City of Caldwell, supra, the court saying:

"In the event street improvements are made within a district, in which public property is situated, whereby the public property is specially benefited, naturally the general public would thereby be benefited. We believe that when the Legislature enacted the various statutes pertaining to municipal financing of street improvements, it had that in mind, and when it provided as in section 49-2707, I. C. A., 'that the city council or trustees may expend from the general fund for such purposes such sums as, in their judgment, may be fair and equitable in consideration of benefits accruing to the general public by reason of such improvements,' it thereby expressly provided a way or means by which the city could pay its fair and equitable portion of the cost of the improvements. That such expenditure was to be made of the general fund within the constitutional and statutory limitations and within the city council's discretion and good judgment . . . ."

There was, therefore, statutory authority by virtue of which the municipality could pay its fair and equitable portion, based upon benefits accruing to the general public by reason of the fact that its property was specially benefited, of the cost of the special improvement to municipal property out of the general fund. This would seem to negative the theory that where public property is located within a special improvement district and is specially benefited by improvements made, and the benefits thereby accrue to the general public, the cost of such improvement may be shifted to the property in private ownership within the improvement district to make up a deficiency created by the failure of the municipality to adopt a proper method of making funds available for the payment of its fair and equitable portion of the cost of the special improvement. Such contention cannot be upheld for the reason that the property of the municipality is undoubtedly specially benefited in the same ratio that private property within the improvement district is specially benefited, and the special benefits which accrue to the property of the municipality accrue to the general public and not alone to the property in private ownership within the improvement district. The cost of the special benefits accruing to the general public by reason of the fact that the property of the municipality has been specially benefited should be paid from funds raised by general taxation and is therefore payable out of the general fund within constitutional and statutory limitations and within the discretion and good judgment of the city council. I. C. A., sec. 49-2702, provides the bases for the assessment of the cost and expense of special improvements as follows:

"The assessment of the cost and expense or (of) any work or improvement provided for in section 3942 of Idaho Compiled Statutes and 49-1106 of Idaho Code shall be assessed upon the abutting, contiguous and tributary lots and lands, and lots and lands included in the improvement district formed, each lot and parcel of land being separately assessed for the full debt thereof in proportion to the number of feet of such lands and lots fronting thereon or included in the improvement district, and in proportion to the benefits derived to such property by said improvement sufficient to cover the total cost and expense of the work to the center of the street."

It would appear from the provisions of the foregoing section, a method having been provided for the payment of that portion of the cost and expense of a special improvement fairly and equitably chargeable to the general public, that the legislature did not contemplate that the private property within the improvement district was to be assessed for special benefits accruing to public property, for the reason that such statutory provision clearly contemplates each lot and parcel of land being separately assessed in the proportionate amount that the special benefits accruing to each lot or parcel of land bear to the total cost, and the statute provides that this proportionate amount is "in proportion to the number of feet of such lands and lots fronting thereon or included in the improvement district, and in...